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Ruling redefines ‘navigable waters’

Despite headlines, judge’s decision does not make boating illegal on all navigable waters

Despite headlines, judge’s decision does not make boating illegal on all navigable waters

A federal court judge in Monroe, La., has ruled that landholders can file trespass charges against anglers who encroach on privately owned waterfront to fish when the Mississippi River floods its banks.

U.S. District Court Judge Robert G. James’ Aug. 29 decision has many anglers up in arms. The headline on one Web site trumpets: “U.S. federal judge declares boating illegal in all U.S. navigable waters.”

That’s not the way Annapolis, Md., admiralty attorney J. Dirk Schwenk reads the decision. “It’s about guys fishing up to three miles inland from the normal bank of the river over private property,” he says. “There’s nothing in [the decision] that says you have no right to hunt or fish on the waters of the United States.”

Yet Paul Loy Hurd, attorney for five anglers whom East Carroll Parish Sheriff Mark Shumate arrested for trespassing — one of them four times — says the decision very clearly curtails the rights of anglers and boaters by adopting a narrow definition of “navigable waters” for the lower reaches of the Mississippi. Though the river at East Carroll Parish in northeasternmost Louisiana is about a mile wide in summer, its waters routinely spill over its banks across a five-mile swath of land from levee to levee in spring, when northern snows melt and the river floods. That’s when the bass, white perch and brim spawn along the edges of the river, where the anglers go to catch the spawning fish.

Attorney Hurd argues that in spring the navigable waters of the Mississippi River stretch five miles from levee to levee, which means anglers ought to be able to fish the Mississippi from levee to levee when the river floods. “That’s five miles of navigable, boatable, fishable water,” he says.

Judge James decided otherwise, ruling that the Mississippi’s navigable waters lie between its summer banks, and that the land from there to the levees is private property, even when there is 25 to 30 feet of floodwater over what in summer is dry land. The decision still allows anglers to fish between the river’s summer banks, but Hurd says no one would want to fish that area in the spring. The fish aren’t there at that time of year, and in any case the current midstream is fierce during spring flooding and brings with it trees and other debris that could sink a small boat.

The ruling will kill fishing on the Mississippi at high water, Hurd says, though as yet the ruling only applies to Louisiana. Anglers on the Mississippi side of the river still can fish floodwaters to the levee on their side. If appealed to the 5th U.S. Circuit in New Orleans and affirmed, the ruling’s direct impact would be extended from Louisiana to Texas and Mississippi.

Schwenk doesn’t think the decision breaks any new ground. It just addresses concerns of riverfront owners who don’t want boaters riding the flood waters and catching fish or shooting game on their property. “This case is limited to that,” he says.

As for boaters generally, they shouldn’t have to worry about being arrested for straying over privately owned riverbanks during flooding — not because of this decision anyway, according to an analysis by staff at Louisiana State University’s Sea Grant Legal Program.

“It is clear from the opinion that Judge James is not making it illegal for boaters to enter the area between the high- and low-water mark,” their analysis says. “However, he has made it illegal for boaters and others to fish and hunt in the waters covering privately owned land in between the high- and low-water mark, a crime for which people may be arrested under the state criminal trespass laws.”

Sea Grant’s analysis says the decision also raises some areas of potential conflict under Louisiana law. Article 452 of the Louisiana Civil Code says, “Everyone has the right to fish in the rivers, ports, roadsteads and harbors … provided he does not cause injury to the property of adjoining owners” and as long as he does not violate any licensing and permit regulations. Louisiana’s Article 450 also clearly states that “running waters, the water bottoms of natural navigable water bodies, the territorial sea, and the seashore” are public things, subject to public use — including fishing and hunting.

“Public access is a much bigger issue than a lot of people realize,” says Lisa Schiavinato, coordinator of the Sea Grant legal program. “Each state has its own eccentricities.” She says Louisiana traditionally has protected hunting, fishing and boating on its waters, but it also has a tradition of looking after private property rights.

Normal Parm Jr. et al v. Sheriff Mark Shumate has been percolating in the courts since 1995, when Shumate made the first trespass arrest on land then owned by Walker Lands. (Walker Cottonwood Farms is the current landholder.) Hurd says the property is a hunting and fishing lodge, the farming part of it being fields of millet that attract ducks.

Judge James based his decision in part on a 2004 Louisiana 2nd Circuit Court of Appeals ruling against sport anglers who rode the spring floodwaters onto Walker lands to fish Gassoway Lake — 3-1/2 miles from the river — and a drainage ditch that runs from the lake to the river and is dry most of the year. The appeals court found that since the privately held land extending from the river’s summer banks to the levee is dry most of the year, spring floodwaters over that land aren’t navigable because they are unsuitable for interstate or foreign commerce.

James agreed with that finding and rejected the notion that there is a federal common-law right to fish and hunt between a river’s ordinary high- and low- water marks — in this case, between the river’s summer banks and the levees. He said a 1931 decision, Silver Springs Paradise Co. v. Ray, establishes that there is a “public right of navigation” entitling the public to the reasonable use of navigable waters for travel, transportation, boating and sailing, but he thought it would be “overbroad” to extend that right of navigation to floodwaters over private lands. He also agreed that Louisiana law allows public use of a river’s banks up to its high-water mark, but he said the law limits that public use to activities incidental to the river’s use as an avenue of commerce. He said neither hunting nor fishing qualify as commercial.

Hurd, who plans to appeal the ruling, predicts that landowners along the Mississippi River will start erecting poles on their land now to delineate the river’s summer banks and to warn anglers and hunters that they should proceed no farther inland when the river is flooded. That will cast a pall on spring fishing on the river.

“Literally thousands of fishermen are being told not to go out and fish on the Mississippi River,” he says, at least not on private land.